General Terms and Conditions of Sale and Delivery

of TF Wickeltechnik GmbH

SCOPE OF APPLICATION

(1) The offers and contracts of TF Wickeltechnik GmbH, Am Wolfsbaum 4, 75245 Neulingen (hereinafter referred to as “TFW”) for the development, manufacture, adaptation and delivery of TFW products and for other services provided by TFW are based exclusively on the following General Terms and Conditions of Sale and Delivery (“GTCS”). They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.

(2) These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that TFW has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if TFW carries out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.

FORMATION OF THE CONTRACT

(1) The contract with the respective customer shall only come into effect with the issue of a written order confirmation by TFW or with a delivery of the respective TFW product by TFW initiated by the customer. Any prior declarations by the customer, in particular letters of confirmation, shall only be deemed to be an offer to conclude a contract. Verbal promises made by TFW prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

(2) Unless otherwise agreed in writing, all offers, the documents belonging to the offers such as illustrations, drawings and performance specifications, price lists and other documents of TFW are non-binding. For the definition of the quality of a TFW product or a service to be provided by TFW, only the descriptions in the written order confirmation by TFW shall be authoritative.

(3) TFW reserves the right to make changes to TFW products in the course of technical progress.

(4) Unless otherwise agreed, TFW reserves the property rights and copyrights to all submitted offers, cost estimates, drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids. The customer may not make these objects and documents accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of TFW. At the request of TFW, the customer shall return these items to TFW in full and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.

SUBJECT MATTER OF THE CONTRACT, OBLIGATIONS OF THE PARTIES

(1) The respective specific subject matter of the contract results from the customer’s order on which the contract is based and the corresponding order confirmation by TFW. The services of TFW may include in particular

(a) Delivery of standardized TFW products that do not require individual customization for the respective customer (hereinafter “Standard TFW Products”).

(b) Production and delivery of standardized TFW products that are individually adapted to the respective customer requirements (hereinafter “Adapted TFW Products”).

(d) Installation and commissioning of standard, customized or individual TFW products (hereinafter “TFW installation”).

(e) conversions, repairs, spare parts deliveries and other services (hereinafter “TFW service products”)

(2) In the case of customized and individual TFW products, the customer shall provide TFW with the necessary product specifications and requirements in a format specified by TFW at the latest at the time of his order. In particular, the customer shall inform TFW of the systems and/or devices already existing at the customer’s premises with which the TFW product is to interact, providing suitable documentation. The same applies to all safety-relevant aspects in connection with a later use of the customized or individual TFW product. The customer is entitled to change and adapt the product specifications at any time up to the delivery of the customized or individual TFW product intended for the customer. Any change or adjustment shall require TFW’s written consent to be effective. TFW shall inform the customer of the possible change in the remuneration and the production, delivery and installation dates and obtain the customer’s consent to the adjustment of the remuneration and the dates. Additional time and costs associated with the customer’s changes and adjustments will be charged to the customer. If the customer does not agree to the changes, TFW is not obliged to carry out the changes to the product specification. TFW is entitled to charge the customer for the costs of checking the feasibility of the customer’s change requests.

(3) In the case of the delivery of customized and individual TFW products, TFW shall carry out an acceptance test of the corresponding TFW product together with the customer after delivery and, if applicable, installation.

(4) If a TFW installation is ordered, the customer is obliged to fulfill certain obligations to cooperate. These include: free access for TFW employees to the areas concerned, provision of a level, paved floor and assurance of certain floor load-bearing capacity, provision of the necessary conveyor equipment and transport aids (e.g. forklift trucks), provision of a power connection and a compressed air connection and, if necessary, special work clothing and personal protective equipment. The parties shall agree on further obligations to cooperate as part of the commissioning.

(5) TFW is entitled to terminate the contract after the expiry of a reasonable deadline set by TFW for the fulfillment of the customer’s obligations to cooperate if the customer fails to do so. In addition, TFW shall be entitled to charge the customer for any additional expenses incurred by TFW (e.g. renewed travel).

REMUNERATION, REMUNERATION ADJUSTMENT, COMPENSATION IN THE EVENT OF TERMINATION

(1) Unless otherwise agreed in writing, the remuneration shall be understood as net prices ex works plus statutory VAT. Any special payments in connection with the payment of the remuneration (e.g. bank charges, currency exchange fees, etc.) shall be borne by the customer. Payment shall be made in euros. The return and disposal of packaging shall be agreed separately.

(2) Remuneration for TFW installations and TFW service products shall be based on time and effort. Offers and cost estimates are based on the assumption that the information provided by the customer in the order, in particular regarding the nature of the installation site, is correct and that all obligations to cooperate to be fulfilled by the customer and specified in the order confirmation are properly fulfilled (e.g. provision of the necessary connections for TFW products). If the information provided by the customer is incorrect or the customer’s obligations to cooperate have not been properly fulfilled and if this results in higher costs for the TFW installation, TFW shall be entitled to invoice these costs to the customer separately.

(3) If the customer makes use of his right of termination according to § 649 BGB, TFW may, instead of the claims arising from § 649 BGB, invoice the services rendered up to the termination and, in addition, demand a lump sum amounting to 10% of the remuneration for the services not yet performed as compensation for other expenses and loss of profit. The right of the customer to prove that the damage incurred by TFW pursuant to § 649 BGB is significantly lower than the lump sum or that TFW has not incurred any damage at all shall remain unaffected.

TERMS OF PAYMENT

(1) Unless otherwise agreed, the agreed price for the development, manufacture and delivery of TFW products shall be invoiced as follows:

(a) 40% of the total price after order confirmation by TFW;

(b) 60% of the total price after delivery of Standard TFW Products or after expiry of the Acceptance Test for Customized and Individual TFW Products.

(2) The respective installment payments for TFW products described in paragraph (1) shall be paid without deduction within 14 days of receipt of the invoice. The total price for TFW installation and for TFW service products shall be paid without deduction within 7 days of receipt of the invoice. TFW is entitled to issue the invoice electronically, unless otherwise agreed.

(3) In the event of late payment, default interest of 9 percentage points above the respective base interest rate shall be owed.

(4) Compliance with contractually agreed development, production and delivery deadlines presupposes the fulfillment of the agreed obligations to cooperate or advance performance as well as the other contractual obligations of the customer. If the customer is in default with the performance of his cooperation or advance performance obligations as well as his other contractual obligations, in particular also payment obligations from previous contractual relationships, TFW may refuse further performance of the service.

(5) Offsetting or retention on the part of the customer is only permitted for the delivery of standard TFW products on the basis of undisputed or legally established counterclaims of the customer.

DELIVERY

(1) The delivery of TFW products shall be EXW (Incoterms 2010). In the case of import into non-EU countries, the customer shall also be responsible for organizing the import. The customer shall ensure that the TFW products ordered by him are not subject to any import restrictions in his country.

(2) Delivery shall be made after full payment of the first and second installments of the total invoice [clauses 5(1)(a) and 5(1)(b)].

(3) All deadlines specified by TFW, in particular delivery and installation dates, are only binding if they are expressly designated as binding by TFW. The expiry of the binding deadlines entitles the customer to assert the statutory rights to which he is entitled – subject to the corresponding restrictions in these GTCS – but only after the unsuccessful expiry of a reasonable remedy period set by him.

(4) TFW shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. disruption of operations of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or untimely delivery by suppliers) for which TFW is not responsible. If such events make delivery or performance significantly more difficult or impossible for TFW and the hindrance is not only of a temporary nature, TFW shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to TFW.

(5) TFW is entitled to make partial deliveries if

the partial delivery can be used by the customer for the contractually intended purpose,
the delivery of the remaining goods is ensured and
the customer does not incur any significant additional work or costs as a result (unless TFW agrees to bear these costs).

HAZARDOUS TRANSITION

(1) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if TFW has assumed other services (e.g. shipment or installation). If shipment or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer from the day on which the goods are ready for shipment and TFW has notified the customer of this.

(2) If delivery is delayed at the customer’s request, the risk shall pass to the customer from the day of notification of readiness for dispatch.

(3) Storage costs after the transfer of risk shall be borne by the customer. In the case of storage by TFW, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. TFW reserves the right to claim and prove further or lower storage costs.

(4) Any deliveries shall only be insured by TFW against theft, breakage, transport, fire and water damage or other insurable risks at the express written request of the customer and at the customer’s expense.

(5) If acceptance is required (for Customized and Individual TFW Products), the TFW Product shall be deemed accepted if

the delivery and, if TFW is also responsible for the installation, the installation has been completed,
TFW has informed the customer of this with reference to the fiction of acceptance in accordance with this paragraph (5) and has requested the customer to accept the goods,
twelve working days have passed since delivery or installation or the customer has started using the TFW product (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
the customer has failed to accept the product within this period for a reason other than a defect notified to TFW which makes the use of the TFW product impossible or significantly impairs it.

RESERVATION OF TITLE, PROHIBITION OF ASSIGNMENT

(1) TFW retains title to the delivered TFW products until full receipt of the contractually agreed payments on TFW’s claims arising from the underlying contract (delivery and any installation of TFW products) and any business relationships with the customer preceding this contract for similar TFW products, including legal claims. The customer is obliged to mark the TFW products that are not yet his property accordingly.

(2) The customer may use the TFW products subject to retention of title and resell them in the ordinary course of business as long as the customer is not in default of payment. However, the customer may not pledge the TFW products subject to retention of title or assign them by way of security. The customer hereby assigns to TFW in full by way of security all claims for payment against his customers arising from the resale of the TFW products subject to retention of title as well as all claims of the customer against his customers or third parties arising from any other legal grounds (in particular claims in tort and claims for insurance benefits), including all current account balance claims.

(3) The customer may collect these claims assigned to TFW for his account in his own name for TFW as long as TFW does not revoke this authorization. This shall not affect TFW’s right to collect these claims itself; however, TFW shall not assert the claims itself and shall not revoke the direct debit authorization as long as the customer duly meets its payment obligations.

(4) However, if the customer acts in breach of contract – in particular if he is in default of payment of a claim for payment, TFW may demand that the customer informs TFW of the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over to TFW all documents and provides all information required by TFW to assert the claims.

(5) Any processing or transformation of the TFW products subject to retention of title by the customer shall always be carried out for TFW. If the TFW products subject to retention of title are processed with other items that do not belong to TFW, TFW shall acquire co-ownership of the new item in the ratio of the value of the TFW product (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the new item created by processing as to the TFW products subject to retention of title.

If the TFW products subject to retention of title are inseparably combined or mixed with other items not belonging to TFW, TFW shall acquire co-ownership of the new item in the ratio of the value of the TFW products subject to retention of title (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If TFW products are combined or mixed in such a way that the customer’s item is to be regarded as the main item, the customer and TFW hereby agree that the customer shall transfer co-ownership of this item to TFW on a pro rata basis.

(6) If TFW withdraws from the contract in the event of breach of contract by the customer, in particular in the event of default in payment, TFW shall be entitled to take back the TFW products not yet owned by the customer at the customer’s expense and/or to demand compensation from the customer. Further claims of TFW remain unaffected by this.

(7) In the event of seizure, confiscation or execution measures by third parties, the customer shall notify TFW immediately in writing. The customer shall bear the costs of asserting and enforcing TFW’s claims with regard to TFW products not yet owned by the customer.

(8) If the value of the existing securities exceeds TFW’s claims against the customer arising from the underlying contract and any business relationships between TFW and the customer for similar products preceding this contract by more than 20%, TFW shall be obliged, at the customer’s request, to release corresponding securities at TFW’s discretion.

WARRANTY

(1) The subject matter of the contract is exclusively the TFW product and the TFW service with the properties and features as well as the intended use in accordance with the individual contractual agreement and the product description enclosed with the individual contract with the customer.

(2) Other or further properties and/or characteristics and/or a purpose of use going beyond these shall only be deemed agreed if they are expressly confirmed in writing by TFW. Unless otherwise contractually agreed between TFW and the customer, enclosed product descriptions as well as the quality agreed in individual contracts shall not constitute the assumption of a guarantee of quality or durability within the meaning of § 443 BGB.

(3) The customer is obliged to carefully inspect the delivered TFW product immediately after delivery to him or to the third party designated by him. The respective TFW product shall be deemed approved by the customer with regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection if TFW does not receive a written notice of defects within five working days of delivery. With regard to other defects, TFW products shall be deemed approved by the customer if TFW does not receive the notice of defects within five working days of the time at which the defect became apparent; however, if the defect was already recognizable to the customer at an earlier point in time during normal use, this earlier point in time shall be decisive for the beginning of the period for giving notice of defects. At TFW’s request, a TFW product complained about shall be returned to TFW carriage paid. In the event of a justified complaint, TFW shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the TFW product is located at a place other than the place of intended use.

(4) In the event of material defects in the delivered TFW product, TFW shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, TFW may withdraw from the contract or reduce the purchase price appropriately. In the event of a warranty claim, parts removed from the sold and transferred TFW product shall automatically become the property of TFW, which the contracting parties have already agreed to upon conclusion of the contract.

(5) TFW is entitled to refuse subsequent performance altogether if it is only associated with disproportionate costs or is impossible for other reasons. Further rights of the customer remain unaffected.

(6) In the event of defects in components from other manufacturers which TFW cannot remedy for licensing or factual reasons, TFW shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against TFW shall only exist for such defects under the other conditions and in accordance with these GTC if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against TFW shall be suspended.

(7) The warranty shall not apply if the customer modifies the delivered goods or has them modified by third parties without the consent of TFW and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

(8) The warranty period is two years and begins with the delivery to the customer or another recipient named by him or from the time of acceptance, if and insofar as acceptance is required (for customized and individual TFW products). This period shall not apply to claims for damages of the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by TFW or its vicarious agents, which shall in each case become statute-barred in accordance with the statutory provisions.

(9) The operating instructions in accordance with MRL 2006/42/EC are an integral part of the associated TFW product and an indispensable part of the contract for both contracting parties. Any liability and warranty shall lapse with immediate effect in the event of improper handling or violation of the instructions in these operating instructions.

LIABILITY

(1) TFW shall have unlimited liability in cases of intent and gross negligence.

(2) In the event of simple negligence, TFW shall only be liable

(a) for damages resulting from injury to life, body or health,

(b) for damages arising from the breach of an essential contractual obligation (i.e. an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for foreseeable, typically occurring damages.

The limitations of liability resulting from the above sentence shall not apply if TFW has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.

Any further liability on the part of TFW is excluded.

(3) In the case of the manufacture of customized and individual TFW products according to customer drawings, samples and other instructions of the customer, TFW shall not assume any warranty or liability for the functional suitability of the product, insofar as TFW is not responsible for their absence.

(4) Insofar as TFW provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.

PROPERTY RIGHTS AND INFRINGEMENTS

(1) All existing registered and unregistered property rights to and know-how about TFW products and TFW services shall remain with TFW. This also applies to any property rights and know-how that arise during the development and manufacture of customized and individual TFW products. The customer is not entitled to use any drawings or information provided to him, which concern registered and unregistered property rights and know-how of TFW, for purposes outside this contract (e.g. own production of parts and accessories).

(2) If, after the effective conclusion of the contract between TFW and the customer, infringements of property rights are asserted against the customer by third parties and the use of TFW products is impaired or prohibited as a result, TFW shall, at its own discretion, modify or replace the TFW products within a reasonable period of time so that they no longer affect the property rights of third parties, but nevertheless correspond to the contractually agreed quality. Instead of the aforementioned procedure, TFW shall be entitled to rescind the contract concluded with the customer and to take back the TFW products against reimbursement of the remuneration paid by the customer after deduction of a reasonable usage fee for the time during which the customer has had the contractual products in his possession.

(3) If claims are asserted against the customer by third parties due to an alleged infringement of property rights by TFW products, the customer shall leave it to TFW alone to decide on the conduct of any resulting disputes. In particular, the customer may not enter into any settlement or make any other concessions without the prior written consent of TFW. TFW shall bear the entire costs of any legal dispute that may become necessary.

(4) TFW shall not be liable for infringements of property rights if TFW products have been used in a form not authorized by TFW.

(5) In the event of the delivery of customized and individual TFW products manufactured according to customer specifications, the customer warrants that these customer specifications do not infringe any third-party property rights. Should claims be asserted against TFW by third parties in this context, the customer shall be obliged to indemnify TFW against claims by third parties due to infringements of industrial property rights, insofar as these claims by third parties are attributable to the customer specifications.

SECURITY

The customer is obliged to keep confidential all information provided or made known to him in connection with the contract (in particular regarding the performance, quality or design) of the TFW products.

FINAL PROVISIONS

(1) In case of doubt, the provisions of these GTC shall remain binding in their remaining parts even if individual provisions are legally invalid. The parties undertake to replace ineffective provisions with provisions that come as close as possible to the intended economic success. The same applies to any gaps in the contract.

(2) Amendments or additions to these GTCS and confirmed orders must be made in writing. This shall also apply to any amendments to this written form clause.

(3) The contract concluded between the parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(4) In the event of disputes in connection with the contract concluded between the parties, Stuttgart Regional Court shall have exclusive jurisdiction. Notwithstanding this, TFW shall remain entitled to bring an action at the customer’s general place of jurisdiction.

(5) TFW shall be entitled, at its sole discretion, to have disputes arising out of or in connection with the Contract, including all questions concerning its existence, validity or termination, settled by arbitration in Paris under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) instead of by ordinary courts of law. The arbitral tribunal shall consist of 3 arbitrators. The language of the arbitration proceedings shall be English.

In the event that the customer intends to bring an action, TFW shall be obliged, at the customer’s request, to make a decision on whether to refer the matter to arbitration within a reasonable period of time set by the customer. If TFW does not make a decision within the reasonable period of time set by the customer or if TFW decides not to refer the matter to arbitration, TFW’s right to refer the matter to arbitration shall lapse.

Status: 11.2019